FIRST SUPPLEMENTAL INDENTURE

COMMSCOPE, INC.

as Issuer

U.S. BANK NATIONAL ASSOCIATION

as Trustee

 

FIRST SUPPLEMENTAL INDENTURE

Dated as of May 28, 2009

to

SUBORDINATED INDENTURE

Dated as of May 28, 2009

 

3.25% Senior Subordinated Convertible Notes due 2015

TABLE OF CONTENTS

 

 

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TABLE OF CONTENTS

(continued)

 

 

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TABLE OF CONTENTS

(continued)

 

EXHIBITS

 

 

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FIRST SUPPLEMENTAL INDENTURE, dated as of May 28, 2009 (this “ Supplemental Indenture ”), between CommScope, Inc., a Delaware corporation (the “ Company ”), and U.S. Bank National Association, as trustee (the “Trustee” ) to the Subordinated Indenture dated as of May 28, 2009, between the Company and the Trustee (as amended or supplemented from time to time in accordance with the terms thereof, the “ Base Indenture ”).

RECITALS OF THE COMPANY

WHEREAS, the Company executed and delivered the Base Indenture to the Trustee to provide, among other things, for the issuance, from time to time, of the Company’s unsecured Securities, in an unlimited aggregate principal amount, in one or more series to be established by the Company under, and authenticated and delivered as provided in, the Base Indenture;

WHEREAS, Section 301 of the Base Indenture provides for the Company and the Trustee to enter into an indenture supplemental to the Base Indenture to establish the form and terms of Securities of any series;

WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to issue the Notes provided for in this Supplemental Indenture and to execute and deliver this Supplemental Indenture;

WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to enter into this Supplemental Indenture to establish a new series of its Securities to be known as its “3.25% Senior Subordinated Convertible Notes due 2015” (the “ Notes ”), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Supplemental Indenture;

WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note and the Form of Notice of Conversion, Form of Fundamental Change Purchase Notice and Form of Assignment and Transfer contemplated under the terms of the Notes are to be substantially in the forms hereinafter provided; and

WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture, and has performed all requirements necessary to make (i) this Supplemental Indenture a valid instrument in accordance with its terms and (ii) the Notes provided for hereby, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company.

NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, each party agrees for the benefit of the other parties and the equal and ratable benefit of the Holders of the Notes, as follows:

ARTICLE 1

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

SECTION 1.01. Scope of Supplemental Indenture . The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes, which may be issued from time to time, and shall not apply to any other Securities that may be issued under the Base Indenture unless a

supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. The provisions of this Supplemental Indenture, including the definitions contained in Section 1.02 hereof and contained elsewhere herein, shall supersede any corresponding provisions and definitions in the Base Indenture.

SECTION 1.02. Definitions . For all purposes of the Indenture (as defined in this Section 1.02), except as otherwise expressly provided or unless the context otherwise requires:

(i) the terms defined in this Article 1 shall have the meanings assigned to them in this Article 1 and the terms defined in this Article 1 and in this Supplemental Indenture include the plural as well as the singular;

(ii) all words, terms and phrases defined in the Base Indenture (but not otherwise defined herein) shall have the same meanings as in the Base Indenture;

(iii) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, shall have the meanings assigned to them in the Trust Indenture Act;

(iv) all accounting terms not otherwise defined herein shall have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are in effect from time to time; and

(v) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.

(vi) Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

“ Additional Interest ” has the meaning specified in Section 5.02(c).

“ Additional Notes ” has the meaning specified in Section 2.01.

“ Additional Shares ” has the meaning specified in Section 4.05(a).

“ Agent Members ” has the meaning specified in Section 2.02.

“ Base Indenture ” has the meaning specified in the first paragraph of this Supplemental Indenture.

“ Business Day ” means, with respect to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or to be closed.

“ Clause A Distribution ” has the meaning specified in Section 4.03(c).

 

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“ Clause B Distribution ” has the meaning specified in Section 4.03(c).

“ Clause C Distribution ” has the meaning specified in Section 4.03(c).

“ close of business ” means 5:00 p.m. (New York City time).

“ Common Stock ” means the shares of common stock, par value $0.01 per share, of the Company as such shares of common stock exist on the date of this Supplemental Indenture, subject to Section 4.06.

“ Company ” has the meaning specified in the first paragraphs of this Supplemental Indenture.

“ Concurrent Offering ” means the offering of 10,465,000 shares of the Company’s common stock in an underwritten public offering pursuant to a prospectus supplement dated May 21, 2009, which is occurring concurrently with the offering of the Notes.

“ Conversion Agent ” means the Trustee or such other office or agency designated by the Company where Notes may be presented for conversion. The Conversion Agent shall initially be the Trustee.

“ Conversion Date ” has the meaning specified in Section 4.02(b).

“ Conversion Notice ” has the meaning specified in Section 4.02(b).

“ Conversion Price ” means, in respect of each Note, as of any date, $1,000, divided by the Conversion Rate as of such date.

“ Conversion Rate ” means, initially, 36.3636 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as set forth herein.

“ Continuing Director ” means a director who either was a member of the Company’s Board of Directors on March 31, 2009 or who becomes a member of the Company’s Board of Directors subsequent to that date and whose appointment, election or nomination for election by the Company’s stockholders was duly approved by a majority of the continuing directors on the Company’s Board of Directors at the time of such approval, either by a specific vote or by approval of the proxy statement issued by the Company on behalf of the Board of Directors in which such individual is named as nominee for director.

“ Credit Agreement ” means that certain Credit Agreement, dated as of December 27, 2007, as amended, by and among the Company, Bank of America N.A., as Administrative Agent, Swing Line Lender and L/C issuer, and the other lenders party thereto from time to time, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, restated, modified, increased, renewed, refunded, replaced or refinanced, in whole or in part, from time to time (including increasing the amount of available borrowings thereunder), whether or not with the same parties.

 

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“ Custodian ” means the Trustee, as custodian with respect to the Notes (so long as the Notes constitute Global Notes), or any successor entity.

“ Depositary ” or “Depository ” has the meaning set forth for “Depositary” in the Base Indenture, which shall initially be The Depository Trust Company until a successor Depositary shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean such successor Depositary.

“ Designated Senior Indebtedness ” shall mean any indebtedness outstanding under the Credit Agreement and any other Senior Indebtedness the principal amount of which is $10,000,000 or more and designated as such by the Company in an Officers’ Certificate to the Trustee.

“ Effective Date ” has the meaning specified in Section 4.05(c).

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“ Ex-Dividend Date ” means the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance or distribution in question.

“ Federal Bankruptcy Code ” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.

“ Fundamental Change ” will be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:

(1) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, its Subsidiaries, and its and their employee benefit plans, has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s common equity representing more than 50% of the total voting power of all outstanding shares of the Company’s common equity that are entitled to vote generally in the election of directors;

(2) consummation of any share exchange, consolidation or merger of the Company or any other transaction or series of transactions pursuant to which the Common Stock will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one of the Company’s Subsidiaries;

(3) the Company’s stockholders approve any plan or proposal for the liquidation or dissolution of the Company; or

(4) the Common Stock (or other common stock into which the Notes are then convertible) ceases to be listed or quoted on a national securities exchange in the United States; or

 

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(5) Continuing Directors cease to constitute at least a majority of the Company’s Board of Directors;

Notwithstanding the foregoing, a Fundamental Change as a result of clause (2) above will not be deemed to have occurred if 90% of the consideration received or to be received by the holders of the Common Stock, excluding cash payments for fractional shares, in connection with the transaction or transactions constituting the Fundamental Change consists of Publicly Traded Securities and as a result of such transaction or transactions the Notes become convertible into such Publicly Traded Securities, excluding cash payments for fractional shares, subject to the provisions set forth under Section 4.02 of this Supplemental Indenture.

“ Fundamental Change Company Notice ” has the meaning specified in Section 3.01(b).

“ Fundamental Change Purchase Date ” has the meaning specified in Section 3.01(a).

“ Fundamental Change Purchase Notice ” has the meaning specified in Section 3.01(a)(i).

“ Fundamental Change Purchase Price ” has the meaning specified in Section 3.01(a).

“ Global Note ” means any Note that is a registered in the Security Register in global form.

“ Hedging Obligations ” means, with respect to the Company, the Company’s obligations under (i) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements, (ii) other agreements or arrangements designed to manage interest rates or interest rate risk, and (iii) other agreements or arrangements designed to protect us against fluctuations in currency exchange rates or commodity prices.

“ Indenture ” means the Base Indenture, as originally executed and as supplemented from time to time by one or more indentures supplemental hereto, including this Supplemental Indenture, entered into pursuant to the applicable provisions of the Indenture, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern the Base Indenture, this Supplemental Indenture and any other such supplemental indenture, respectively.

“ Initial Notes ” has the meaning specified in Section 2.01.

“ Interest Payment Date ” means, with respect to the payment of interest on the Notes, each January 1 and July 1 of each year.

“ Last Reported Sale Price ” of the Common Stock on any date means the closing sale price per share of Common Stock (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. securities exchange on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “ Last Reported Sale Price ” shall be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by Pink Sheets LLC or a similar organization. If the Common Stock is not so quoted, the “ Last Reported Sale Price ” shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

 

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“ Make-Whole Fundamental Change ” means any transaction or event that constitutes a Fundamental Change (determined after giving effect to any exceptions or exclusions to such definition).

“Merger Event” has the meaning specified in Section 4.06(a).

“ Note ” or “ Notes ” has the meaning specified in the fourth paragraph of the recitals of this Supplemental Indenture, and shall include any Additional Notes issued pursuant to Section 2.01 hereof.

“ opening of business ” means 9:00 a.m. (New York City time).

“ Paying Agent ” has the meaning set forth in the Base Indenture, which shall initially be the Trustee, and shall be the Person authorized by the Company to pay the principal amount of, interest on, or Fundamental Change Purchase Price of, any Notes on behalf of the Company.

“ Physical Notes ” means certificated Notes that are not in global form, are registered in the Security Register and are issued in denominations of $1,000 principal amount and multiples thereof.

“ Principal Subsidiary ” means any of the Company’s subsidiaries that is a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X promulgated by the Commission.

“ Publicly Traded Securities ” means, in respect of a transaction described in clause (2) of the definition of Fundamental Change, shares of common stock traded on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market (or any or their respective successors) or which will be so traded or quoted when issued or exchanged in connection with a Fundamental Change.

“ Record Date ” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other security) have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors of the Company or by statute, contract or otherwise).

“ Regular Record Date ” means, with respect to the payment of interest on the Notes, the December 15 (whether or not a Business Day) immediately preceding an Interest Payment Date on January 1 and the June 15 (whether or not a Business Day) immediately preceding an Interest Payment Date on July 1.

 

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“ Reference Property ” has the meaning specified in Section 4.06(a).

“ Scheduled Trading Day ” means a day that is scheduled to be a Trading Day on the principal United States national or regional securities exchange or market on which the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “ Scheduled Trading Day ” means a Business Day.

“ Senior Indebtedness ” means, in respect of the Company, whether now or hereafter incurred:

 

(i)

the principal, premium, if any, interest and all other amounts owed in respect of the Company’s (A) indebtedness for money borrowed and (B) indebtedness evidenced by securities, debentures, bonds or other similar instruments;

 

(ii)

all obligations of the Company (including all interest accruing after the commencement of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowed as a claim in any such proceeding) payable under the Credit Agreement, whether outstanding on the date of the indenture or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the Company;

 

(iii)

all of the Company’s capital lease obligations;

 

(iv)

all obligations issued or assumed by the Company as the deferred purchase price of property, all of the Company’s conditional sale obligations and all of the Company’s obligations under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business);

 

(v)

all of the Company’s obligations for the reimbursement of any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction;

 

(vi)

all obligations of the type referred to in clauses (i) through (v) above of other Persons for the payment of which the Company is responsible or liable as obligor, guarantor or otherwise;

 

(vii)

all obligations of the type referred to in clauses (i) through (vi) above of other Persons secured by any lien on any of the Company’s properties or assets (whether or not such obligation is assumed by the Company); and

 

(viii)

all Hedging Obligations,

except for (x) any such indebtedness that is by its terms subordinated to or pari passu with the Notes or is subordinated to any other indebtedness (including, without limitation, the Company’s 3.50% Convertible Senior Subordinated Debentures due 2024), (y) any indebtedness between or among the Company or affiliates of the Company, including all other debt securities and guarantees in respect of those debt securities issued to any trust, or trustees of such trust, partnership or other entity affiliated with the Company that is, directly or indirectly, a financing vehicle of the Company (a “ Financing Entity ”) in connection with the issuance by such

 

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Financing Entity of preferred securities or other securities that rank pari passu with, or junior to, the Notes and (z) accounts payable or other liability to trade creditors arising in the ordinary course of business (including guarantees thereof or instruments evidencing such liabilities).

“ Senior Indebtedness Default Notice ” has the meaning specified in Section 8.03(a).

“ Senior Subordinated Indebtedness ” means, with respect to the Company, the Notes and any other indebtedness of the Company that specifically provides that such indebtedness is to have the same rank as the Notes in right of payment and is not subordinated by its terms in right of payment to any indebtedness or other obligation of the Company that is not Senior Indebtedness.

“ Spin-Off ” has the meaning specified in Section 4.03(c).

“ Stated Maturity ” means, with respect to any Note and the payment of the principal amount thereof, July 1, 2015.

“ Stock Price ” has the meaning specified in Section 4.05(c).

“ Subordinated Indebtedness ” means, with respect to the Company, any indebtedness of the Company that specifically provides that such indebtedness is subordinated to the Notes.

“ Subordinated Obligations ” has the meaning set forth in Section 8.01 hereof.

“ Supplemental Indenture ” has the meaning specified in the first paragraph of this Supplemental Indenture.

“ Trading Day ” means a day during which (i) trading in the Common Stock generally occurs on the New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, on the principal other United States national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a United States national or regional securities exchange, in the principal other market on which the Common Stock is then traded, and (ii) a Last Reported Sale Price for the Common Stock is available on such securities exchange or market. If the Common Stock (or other security for which a closing sale price must be determined) is not so listed or traded, “ Trading Day ” means a Business Day.

“ Trigger Event ” has the meaning specified in Section 4.03(c).

“ Trustee ” has the meaning specified in the first paragraph of this Supplemental Indenture.

“ Underwriters ” means J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wachovia Capital Markets, LLC, Calyon Securities (USA) Inc., Lazard Capital Markets LLC, Mizuho Securities USA Inc. and Scotia Capital (USA) Inc.

“ unit of Reference Property ” has the meaning specified in Section 4.06.

 

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“ U.S. ” means the United States of America.

“ Valuation Period ” has the meaning specified in Section 4.03(c).

“ Withholding Agent ” means the office or agency appointed by the Company to withhold the appropriate amount from any payment, to which withholding applies, made by the Company to a Holder in respect of the Notes. The Withholding Agent appointed by the Company shall initially be the Trustee.

ARTICLE 2

THE SECURITIES

SECTION 2.01. Title and Terms; Payments . There is hereby established a series of Securities designated the “3.25% Senior Subordinated Convertible Notes due 2015” initially limited in aggregate principal amount to $287,500,000, which amount shall be as set forth in a Company Order for the authentication and delivery of Notes pursuant to Section 303 of the Base Indenture.

The principal amount of Notes then Outstanding shall be payable at Stated Maturity.

The Company may, from time to time, without notice to, or the consent of the Holders of the Notes, hereafter issue additional notes (“ Additional Notes ”) under the Indenture with the same terms and with the same CUSIP numbers as the Notes issued on the date of this Supplemental Indenture (the “Initial Notes” ) in an unlimited aggregate principal amount; provided that such Additional Notes must be part of the same issue as the Initial Notes for United States federal income tax and securities law purposes. Any such Additional Notes shall constitute a single series together with the Initial Notes for all purposes hereunder, including, without limitation, for purposes of any waivers, supplements or amendments to the Indenture requiring the approval of Holders of the Notes and any offers to purchase the Notes.

The Form of Note, the Form of Notice of Conversion, the Form of Fundamental Change Purchase Notice and the Form of Assignment and Transfer shall be substantially as set forth in Exhibits A, B, C and D, respectively, hereto, which are incorporated into and shall be deemed a part of this Supplemental Indenture, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined to be necessary or appropriate by the officers of the Company executing such Notes, as evidenced by their execution of the Notes.

The Company shall pay the principal of and interest on any Global Note in immediately available funds to the Depositary or its nominee, as the case may be, as the registered Holder of such Global Note. The Company shall pay the principal of any Physical Notes at the office or agency designated by the Company for that purpose. The Company has initially designated the Trustee as its Paying Agent and Security Registrar in respect of the Notes and its agency in New York, New York as a place where Notes may be presented for payment or for registration of transfer. The Company may, however, change the Paying Agent or Security Registrar for the Notes without prior notice to the Holders thereof, and the Company may act as Paying Agent or Security Registrar for the Notes.

 

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Interest on any Physical Notes will be payable (i) to Holders of Physical Notes having an aggregate principal amount of Notes of $5,000,000 or less, by check mailed to the Holders of such Notes at their address in the Security Register and (ii) to Holders having an aggregate principal amount of Physical Notes in excess of $5,000,000, either by check mailed to each Holder at its address in the Security Register or, upon application by a Holder to the Security Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States, which application shall remain in effect until that Holder notifies, in writing, the Registrar to the contrary.

SECTION 2.02. Book-Entry Provisions for Global Notes . (a) The Notes initially shall be issued in the form of one or more Global Notes without interest coupons (i) registered in the name of Cede & Co., as nominee of the Depositary and (ii) delivered to the Trustee as custodian for the Depositary.

Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under this Supplemental Indenture or the Base Indenture with respect to any Global Note held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Note, and Cede & Co., or such other Person designated by the Depositary as its nominee, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of any Holder.

(b) Transfers of Global Notes shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. Notwithstanding anything to the contrary in Section 305 of the Base Indenture, interests of beneficial owners in a Global Note may be transferred or exchanged, in whole or in part, for Physical Notes, only: (i) pursuant to clause (2) of the seventh paragraph of Section 305 of the Base Indenture regarding the Depositary being unwilling, unable or no longer permitted under applicable law to continue in its capacity as Depositary for the Notes, including as a result of ceasing to be registered as a clearing agency under the Exchange Act, in each case if a successor Depositary is not appointed within 60 days or (ii) if an Event of Default with respect to the Notes has occurred and is continuing, in the case of both clauses (i) and (ii) in accordance with the rules and procedures of the Depositary. Other than as set forth in this Section 2.02(b), the Notes shall remain in global form as Global Notes.

(c) In connection with any transfer or exchange of a portion of the beneficial interest in the Global Note to beneficial owners pursuant to Section 305 of the Base Indenture, the Security Registrar shall (if one or more Physical Notes are to be issued) reflect on its books and records the date and a decrease in the principal amount of the Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Notes of like tenor and amount in accordance with Section 305 of the Base Indenture.

(d) In connection with the transfer of the entire Global Note to beneficial owners pursuant to Section 305 of the Base Indenture, the Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee

 

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shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the Global Note, an equal aggregate principal amount of Physical Notes of authorized denominations and the same tenor.

(e) The Holder of Global Notes may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Supplemental Indenture, Base Indenture or the Notes.

SECTION 2.03. CUSIP Numbers . In issuing the Notes, the Company may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders of the Notes; provided that any such notice may state that no representation is made as to the correctness of such numbers as printed on the Notes and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers of the Notes.

SECTION 2.04. Reporting Requirement . The Company shall deliver to the Trustee within 15 days after the same is filed with the Commission, copies of the quarterly and annual reports and of the information, documents and other reports, if any, that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, and the Company shall otherwise comply with the requirements of Trust Indenture Act Section 314(a). Any quarterly or annual reports or other information, documents or other reports that the Company files with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be deemed to be filed with the Trustee and transmitted to the Holders at the time such quarterly or annual reports or other information, documents or other reports are publicly filed with the Commission on the Commission’s EDGAR and/or IDEA filing system (or successor system). The Trustee does not have the duty to review such information, documents or reports, is not considered to have notice of the content of such information, documents or reports and does not have a duty to verify the accuracy of such information, documents or reports.

ARTICLE 3

FUNDAMENTAL CHANGES AND PURCHASES THEREUPON

SECTION 3.01. Purchase at Option of Holders Upon a Fundamental Change . (a) If a Fundamental Change occurs at any time prior to July 1, 2015, then each Holder of Notes shall have the right, at such Holder’s option, to require the Company to purchase for cash any or all of such Holder’s Notes, or any portion of the principal amount thereof, that is equal to $1,000 or a multiple of $1,000, on a date specified by the Company that is no earlier than the 20th Business Day following the date of, and no later than the 35th calendar day following the date of, delivery of the Fundamental Change Company Notice (as defined below) (the “ Fundamental Change Purchase Date ”), at a purchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Purchase Date (the “ Fundamental Change Purchase Price ”); provided , however, that if a Fundamental Change Purchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to

 

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which such Regular Record Date relates, the interest payable in respect of such Interest Payment Date shall be payable to the Holders of record as of the corresponding Regular Record Date and the Fundamental Change Purchase Price shall be equal to 100% of the principal amount of the Notes to be purchased pursuant to this Article 3. The requirement for the Company to purchase any Notes on the Fundamental Change Purchase Date will be subject to extension to comply with applicable law.

Purchases of Notes under this Section 3.01 shall be made, at the option of the Holder thereof, upon:

(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice” ) in the form set forth on the reverse of the Note as Exhibit C thereto, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for tendering interests in Global Notes, if the Notes are not Physical Notes, in each case prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date ; and

(ii) delivery of the Notes, in the case of Physical Notes, to the Paying Agent appointed by the Company (together with all necessary endorsements for transfer), or book-entry transfer of the Notes, in compliance with the procedures of the Depositary, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor.

The Fundamental Change Purchase Notice in respect of any Notes to be purchased shall state:

(i) if such Notes are Physical Notes, the certificate numbers of such Notes;

(ii) the portion of the principal amount of such Notes, which must be $1,000 or a multiple thereof; and

(iii) that such Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and this Supplemental Indenture;

provided , however , that if such Notes are in global form, the Fundamental Change Purchase Notice must also comply with appropriate procedures of the Depositary.

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Purchase Notice contemplated by this Section 3.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Purchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.03 below.

The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written notice of withdrawal thereof.

 

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(b) Fundamental Change Company Notice . On or before the 20th calendar day after the occurrence of a Fundamental Change, the Company shall provide to all Holders of record of the Notes, the Trustee and the Paying Agent (in the case of any Paying Agent other than the Trustee) a notice (the “ Fundamental Change Company Notice ”) of the occurrence of such Fundamental Change and of the purchase right at the option of the Holders arising as a result thereof. Such notice shall be sent by first class mail or, in the case of any Global Notes, in accordance with the procedures of the Depositary for providing notices. Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information included therein in a newspaper of general circulation in New York, New York or shall publish such information on the Company’s website or through such other public medium as the Company may use at such time.

Each Fundamental Change Company Notice shall specify:

(i) the events causing a Fundamental Change;

(ii) the date of the Fundamental Change;

(iii) the last date on which a Holder of Notes may exercise the repurchase right pursuant to this Article 3;

(iv) the Fundamental Change Purchase Price;

(v) the Fundamental Change Purchase Date;

(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;

(vii) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;

(viii) if applicable, that the Notes with respect to which a Fundamental Change Purchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Purchase Notice in accordance with the Indenture; and

(ix) the procedures that Holders must follow to require the Company to purchase their Notes.

No failure of the Company to give the foregoing notices and no defect therein shall limit the purchase rights of the Holders of Notes or affect the validity of the proceedings for the purchase of the Notes pursuant to this Section 3.01.

(c) No Payment During Events of Default . There shall be no purchase of any Notes pursuant to this Section 3.01 if there has occurred and is continuing an Event of Default with respect to the Notes (other than an Event of Default that is cured by the payment of the Fundamental Change Purchase Price of the Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the continuance of an Event of Default (other than an Event of Default that is cured by the

 

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payment of the Fundamental Change Purchase Price with respect to the Notes) and shall deem canceled any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary, in which case, upon such return and cancellation, the Fundamental Change Purchase Notice with respect thereto shall be deemed to have been withdrawn.

SECTION 3.02. Effect of Fundamental Change Purchase Notice . Upon receipt by the Paying Agent of the Fundamental Change Purchase Notice specified in Section 3.01 hereof, the Holder of the Note in respect of which such Fundamental Change Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn in accordance with Section 3.03 hereof) thereafter be entitled to receive solely the Fundamental Change Purchase Price in cash with respect to such Note. Such Fundamental Change Purchase Price shall be paid to such Holder, subject to receipt of funds by the Paying Agent, on the later of (x) the Fundamental Change Purchase Date with respect to such Note ( provided the conditions in Section 3.01 hereof have been satisfied) and (y) the time of delivery or book-entry transfer of such Note to the Paying Agent by the Holder thereof in the manner required by Section 3.01 hereof.

SECTION 3.03. Withdrawal of Fundamental Change Purchase Notice . A Fundamental Change Purchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Company Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date, specifying:

(i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted;

(ii) if Physical Notes have been issued, the certificate numbers of the withdrawn Notes; and

(iii) the principal amount, if any, of such Notes that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or a multiple of $1,000;

provided , however , that if Physical Notes have not been issued, the notice must comply with appropriate procedures of the Depositary.

The Paying Agent will promptly return to the respective Holders thereof any Physical Notes with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with the provisions of this Section 3.03.

SECTION 3.04. Deposit of Fundamental Change Purchase Price . Prior to 11:00 a.m. (local time in The City of New York) on the Fundamental Change Purchase Date, the Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided herein) an amount of money (in immediately available funds if deposited on such Business Day) sufficient to pay the Fundamental Change Purchase Price of all the Notes or portions thereof that are to be purchased as of the Fundamental Change Purchase Date. If the Paying Agent holds cash

 

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sufficient to pay the Fundamental Change Purchase Price of the Notes for which a Fundamental Change Purchase Notice has been tendered and not withdrawn in accordance with this Supplemental Indenture on the Fundamental Change Purchase Date, then as of such Fundamental Change Purchase Date, (a) such Notes will cease to be outstanding and interest will cease to accrue thereon (whether or not book-entry transfer of such Notes is made or such Notes have been delivered to the Paying Agent) and (b) all other rights of the Holders in respect thereof will terminate (other than the right to receive the Fundamental Change Purchase Price and previously accrued and unpaid interest upon delivery or book-entry transfer of such Notes).

SECTION 3.05. Notes Purchased in Whole or in Part . Any Note that is to be purchased, whether in whole or in part, shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires in the case of Physical Notes, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.

SECTION 3.06. Covenant to Comply With Applicable Laws Upon Purchase of Notes . In connection with any offer to purchase Notes under Section 3.01 hereof, the Company shall, in each case if required, (i) comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable, (ii) file a Schedule TO or any other required schedule under the Exchange Act and (iii) otherwise comply with all federal and state securities laws so as to permit the rights and obligations under Section 3.01 to be exercised in the time and in the manner specified in Section 3.01.

SECTION 3.07. Repayment to the Company . To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.04 exceeds the aggregate Fundamental Change Purchase Price of the Notes or portions thereof that the Company is obligated to purchase as of the Fundamental Change Purchase Date, then, following the Fundamental Change Purchase Date, the Paying Agent shall promptly return any such excess to the Company.

ARTICLE 4

CONVERSION

SECTION 4.01. Right to Convert . (a) Subject to the procedures for conversion set forth in this Article 4 and at any time prior to the close of business on the second Scheduled Trading Day immediately preceding July 1, 2015, a Holder may convert its Notes at their full principal amount, or any portion of such principal amount that is equal to $1,000 or an integral multiple of $1,000. No payment or adjustment shall be made for dividends on, or other distributions with respect to, any Common Stock, except as expressly provided in this Article 4.

(b) Notes may not be converted after the close of business on the second Scheduled Trading Day immediately preceding July 1, 2015.

 

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SECTION 4.02. Conversion Procedures . (a) Each Note shall be convertible at the office of the Conversion Agent and, if applicable, in accordance with the procedures of the Depositary.

(b) In order to exercise the conversion privilege with respect to any interest in a Global Note, the Holder must complete the appropriate instruction form for conversion pursuant to the Depositary’s book-entry conversion program, furnish appropriate endorsements and transfer documents if required by the Company or the Conversion Agent, and pay the funds, if any, required by Section 4.02(e) and any taxes or duties if required pursuant to Section 4.07, and the Conversion Agent must be informed of the conversion in accordance with the customary practice of the Depositary. In order to exercise the conversion privilege with respect to any Physical Notes, the Holder of any such Notes to be converted, in whole or in part, shall:

(i) complete and manually sign the conversion notice provided on the back of the Note (the “Conversion Notice” ) or a facsimile of the Conversion Notice;

(ii) deliver the Conversion Notice, which is irrevocable, and the Note to the Conversion Agent;

(iii) if required, furnish appropriate endorsements and transfer documents as may be required by the Conversion Agent,

(iv) make any payment required under Section 4.02(e); and

(v) if required, pay all transfer or similar taxes as set forth in Section 4.07.

The date on which the Holder satisfies all of the applicable requirements set forth above is the “ Conversion Date .” At the Conversion Date the rights of the Holders of such converted Notes as Holders shall cease, and the Person or Persons entitled to receive the shares of Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock as and after such time. The Company shall issue and shall deliver at such office or agency a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment in cash in lieu of any fractional shares, as provided in Section 4.02(c), by the third Business Day immediately following the Conversion Date (the “ Settlement Date ”). A Holder may convert a portion of its Notes only if the principal amount of such portion is $1,000 or an integral multiple thereof.

In the case of any Note that is converted in part only, upon such conversion the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Note or Notes of authorized denominations in aggregate principal amount equal to the unconverted portion of the principal amount of such Note.

If a Holder has already delivered a Fundamental Change Purchase Notice in connection with a Fundamental Change, with respect to a Note, the Holder may not surrender that Note for conversion until the Holder has validly withdrawn the Fundamental Change Purchase Notice in accordance with this Supplemental Indenture.

 

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If more than one Note shall be surrendered for conversion at one time by the same Holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof) so surrendered.

(c) The Company shall not issue fractional shares of Common Stock upon conversion of Notes. Instead the Company shall deliver cash, rounded to the nearest whole cent, for such fractional shares based on the Last Reported Sale Price of the Common Stock on the applicable Conversion Date.

(d) Subject to Section 4.02(e) below, upon conversion, Holders shall not receive any separate cash payment for accrued and unpaid interest or Additional Interest, if any, unless such conversion occurs between a Regular Record Date and the Interest Payment Date to which it relates.

(e) Upon the conversion of any Notes, the Holder will not be entitled to receive any separate cash payment for accrued and unpaid interest or Additional Interest, if any, except to the extent specified below. The Company’s delivery to the Holder of Common Stock, together with any cash payment for any fractional share of Common Stock, into which a Note is convertible will be deemed to satisfy in full the Company’s obligation to pay the principal amount of the Notes so converted and accrued and unpaid interest and Additional Interest, if any, to, but not including, the Conversion Date. As a result, accrued and unpaid interest and Additional Interest, if any, to, but not including, the Conversion Date will be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, Holders of such Notes at the close of business on such Regular Record Date will receive the interest and Additional Interest, if any, payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the opening of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest and Additional Interest, if any, payable on the Notes so converted; provided that no such payment need be made (i) for conversions following the Regular Record Date immediately preceding July 1, 2015, (ii) if the Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, or (iii) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note.

SECTION 4.03. Adjustment of Conversion Rate . The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company will not make any adjustment to the Conversion Rate if Holders of Notes participate, as a result of holding the Notes, in any of the transactions described in this Section 4.03 without having to convert their Notes, as if such Holders held a number of shares of Common Stock equal to the Conversion Rate in effect for such Notes immediately prior to the Ex-Dividend Date for such event.

(a) If the Company, at any time or from time to time while any of the Notes are outstanding, issues shares of its Common Stock as a dividend or distribution on shares of its Common Stock, or if the Company effects a share split or share combination, then the Conversion Rate will be adjusted based on the following formula: